Nicholas's Executors v. Caldwell

Court of Appeals of Kentucky

Nicholas's Executors v. Caldwell

5 Ky. 545

DecidedJuly 1, 1812

StatusPublished

This text of 5 Ky. 545 (Nicholas's Executors v. Caldwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nicholas's Executors v. Caldwell, 5 Ky. 545 (Ky. Ct. App. 1812).

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Opinion

[545]*545OPINION of the Court, by

Judge Owsley.

The appellee prosecuted a scire facias against the appellants, to have execution for four hundred and twenty-[546]*546nine pounds one shilling and a penny^ and interest there^ on from the 16th. of October 1798 until paid and costs, for which he states in his scire jactas he had recovered judgment against them. The appellants pleaded r.ul lid record, upon which plea issue was joined ; the trial was had by the court, and judgment awarded against the appellants ; exceptions to the opinion of the court were filed, and the evidence spread on the record.

The only question necessary to be decided by its in this cause is, the correctness of the decision of the court, ift awarding judgment against the appellants upon the evidence produced in support of the issue ? It evidently devolved on the appellee to produce the record of a judgment corresponding with that set forth in his scire facias, before he could be entitled to a judgment in his favor. This we think he has not done ; the only record of a judgment produced, was an entry on the rule docket of the Mercer quarter session court, of a judgment against the appellants per specialty ; before this judgment could be final, and authorise the issuing of an execution thereon, it should have been entered in court. By the 25th sec. of the act regulating proceedings in civil cases, it is provided, that office judgments taken on the rules in courts of quarter sessions, if not set aside on the second day of the next succeeding term, Shall be entered by the clerk as of that day; which judgment shall be final in actions founded on a specialty. The most obvious meaning of this provision is, that office judgments are not final, and that no execu-, tion can issue thereon until entries made in court. But could any doubt arise as to the meaning of this provision, that doubt must be removed by reference to the 15th sec. of the act to reduce into one the several acts establishing courts of quarter sessions, &c. By this section, it is made necessary for the minutes of the proceedings of each court before every adjournment, to be read by the clerk and signed by the first justice in commission, and no proceedings or judgment of any court shall be of any force or valid, until the same be so read and signed.

It is therefore considered by this court, that the judgment of the Mercer circuit court be, and is hereby reversed, and this cause remanded to that court, that judgment may be entered for the defendants in that [547]*547eourt, &c. And it is farther considered by the court, that the appellants recover of the appellee his, costs expended in this court.

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[545]*545OPINION of the Court, by

Judge Owsley.

The appellee prosecuted a scire facias against the appellants, to have execution for four hundred and twenty-[546]*546nine pounds one shilling and a penny^ and interest there^ on from the 16th. of October 1798 until paid and costs, for which he states in his scire jactas he had recovered judgment against them. The appellants pleaded r.ul lid record, upon which plea issue was joined ; the trial was had by the court, and judgment awarded against the appellants ; exceptions to the opinion of the court were filed, and the evidence spread on the record.

The only question necessary to be decided by its in this cause is, the correctness of the decision of the court, ift awarding judgment against the appellants upon the evidence produced in support of the issue ? It evidently devolved on the appellee to produce the record of a judgment corresponding with that set forth in his scire facias, before he could be entitled to a judgment in his favor. This we think he has not done ; the only record of a judgment produced, was an entry on the rule docket of the Mercer quarter session court, of a judgment against the appellants per specialty ; before this judgment could be final, and authorise the issuing of an execution thereon, it should have been entered in court. By the 25th sec. of the act regulating proceedings in civil cases, it is provided, that office judgments taken on the rules in courts of quarter sessions, if not set aside on the second day of the next succeeding term, Shall be entered by the clerk as of that day; which judgment shall be final in actions founded on a specialty. The most obvious meaning of this provision is, that office judgments are not final, and that no execu-, tion can issue thereon until entries made in court. But could any doubt arise as to the meaning of this provision, that doubt must be removed by reference to the 15th sec. of the act to reduce into one the several acts establishing courts of quarter sessions, &c. By this section, it is made necessary for the minutes of the proceedings of each court before every adjournment, to be read by the clerk and signed by the first justice in commission, and no proceedings or judgment of any court shall be of any force or valid, until the same be so read and signed.

It is therefore considered by this court, that the judgment of the Mercer circuit court be, and is hereby reversed, and this cause remanded to that court, that judgment may be entered for the defendants in that [547]*547eourt, &c. And it is farther considered by the court, that the appellants recover of the appellee his, costs expended in this court.

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5 Ky. 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholass-executors-v-caldwell-kyctapp-1812.